CJM v HMA

Summary of decision in appeal against conviction.

The Court of Criminal Appeal in Edinburgh has refused the appeal against conviction by CJM.

In this case the court was asked to consider whether the presiding judge at the trial of CJM, for historical sex abuse, was correct to consider evidence which alleged the victim had made a previous false claim in a separate case, was a collateral matter and therefore inadmissible as evidence.

CJM was convicted of four charges at Inverness High Court on 28 January 2011. The appeal focused predominantly on the fourth charge found proved, involved the abuse of C in the 1990s. The parts of the libel, which the jury accepted, involved the appellant regularly indecently assaulting C when she was aged between 6 and 10 years old.

The appellant claimed that C was unreliable owing to evidence that she made a false allegation to police in 2006 regarding a different man, and argued that this information should have been heard during his trial.

In Scots law, evidence of either good or bad character is in general inadmissible because it is considered as collateral to the issues for decision as defined in the libel. The general rule at common law is that it is inexpedient to admit evidence of a collateral fact because, while it may perhaps not be wholly irrelevant, it can only have an indirect bearing on the matter before the jury. The evidence would take up a great amount of court time and risk confusing the jury by distracting them from the true issue.

In an Opinion delivered by the Lord Justice Clerk, the appeal was refused on the grounds that the circumstances surrounding the evidence were wholly different, and furthermore that in order to understand and get to the truth of the alleged incident there would require to be a ‘trial within a trial’ which may divert the jury’s attention and obstruct the proper administration of justice.

Furthermore, the LJC stated that he accepted the Crown submission that, even if the evidence of the report of the 2006 incident had been wrongly excluded, no miscarriage of justice occurred. The jury’s determination of the appellant’s guilt in charge 4 could not have been materially affected by the existence of a partially false report relating to quite different circumstances and at a different time.